ANNEXURE A

Opinion by the State Law Advisers

Director-General: Justice

Private Bag X81

0001 PRETORIA

FOR ATTENTION: HDW (Cape Town Parliamentary Office)

CONSIDERATION BY MAGISTRATES’ COURTS OF CONSTITUTIONAL MATTERS

1. The Department of Justice (after this referred to as “the Department”) requests our opinion on the question of whether any instances exist where magistrates’ courts may enquire into or rule on constitutional matters, and if such instances exist, what procedure that court should follow if a constitutional issue arises before it.

2.1 The Department argues that since section 167(4) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), (after this referred to as "the Constitution") (inadvertently misquoted by the Department as section 117(4) of that Act) stipulates the list of exclusive areas of jurisdiction of the Constitutional Court, all matters absent from that list must by “necessary implication” also fall within the jurisdiction of both the High Courts and the Magistrates’ Courts.

2.2 The Department further regards section 167(6)(b) of the Constitution, which provides for appeals to the Constitutional Court “from any other court” (emphasis supplied), as an indication that magistrates’ courts may “also enquire and rule on certain constitutional matters”.

3.1 Section 170 of the Constitution provides that “Magistrates’ Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President”.

3.2 Section 8(1) of the Constitution provides that “(t)he Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. (emphasis supplied). Section 8 (3) in respect of the horizontal application of the Bill of rights (chapter 2 of the Constitution) provides as follows:

(3) When a applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court -

(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).”

(emphasis supplied).

3.3 “Jurisdiction ... means the power vested in a court of law to adjudicate upon, determine and dispose of a matter”, per Nienaber JA in Ewing McDonald & Co Ltd v M & M Products 1991 (1) SA 252 AD at 256G. Voet (quoted by D Pistorius Pollak on Jurisdiction (Second Edition) 1993 at 1) defines jurisdiction as “(t)he public power of deciding cases, both civil and criminal and putting the decisions into execution.”.

3.4 “A constitutional matter includes any issues involving the interpretation, protection or enforcement of the Constitution.”, per section 167(7) of the Constitution (emphasis supplied).

4.1 L C Steyn Die Uitleg van Wette (Vyfde uitgawe) 1981 states at 206 that “... 'n person of liggaam wat sy bevoegdhede aan 'n wet ontleen niks geldigs kan verrig waartoe hy nie by daardie wet, uitdruklik of by wyse van versweё bepaling, gemagtig is nie ..” (emphasis supplied). Devenish Interpretation of Statutes 1992 states at 195 and 196 that “(t)here is a strong presumption against the interpretation of a statute that would have the effect of excluding the jurisdiction of the courts ....... this well-recognized rule was applied in De Wet v Deetlefs where the court held that in order to oust the jurisdiction of a court of law it must be clear that such was the intention of the legislature, and in such cases ouster clauses should be given a ‘strict construction’.”. These two rules of legal interpretation serve as points of departure in the adjudication of the current problem.

4.2 The Department in its interpretation of section 167(4) seems to rely on the maxim unius inclusio est alterius exclusio, which is also closely related to the ex contrariis maxim. Steyn op.cit at 50 quotes a number of cases cautioning against a rigid application of this maxim and at 51 refers to instances where “.... 'n wet ander aanduidings bevat wat hierdie stelreёl weerlL, soos waar uit die wet as geheel of uit ander omstandighede blyk ...” Devenish op.cit. at 85 quotes, with approval, the court’s judgment in Consolidated Diamond Mines of South West Africa v Administrator, SWA 1958 (4) SA 572 A 648, that this maxim “affords ... no more than a prima facie indication of the legislature’s intention, the weight of which must depend on the purport of the enactment as a whole.”. The late Professor E Mureinik in an article entitled “Expressio unius: exclusio alterius? South African Law Journal (Volume 104) 1987 264 states at 265 that “(i)t may help ... to recall that it is often said that the maxim is a rule not of law, but of construction ..... (t)here are no definable operands .. upon which the maxim operates so as to point to a conclusion of law ..... (t)he maxim ... is a convenient label for a particular pattern of reasoning, which owes its validity not to the authority of the maxim, but to its own intrinsic cogency.”, (emphasis supplied).

4.3 The Constitutional Court’s exclusive jurisdiction in respect of certain constitutional matters is listed in section 167(4) of the Constitution. On a reading of only that subsection, two conclusions can be arrived at: firstly, that it either denotes that all other courts have jurisdiction in respect of all remaining constitutional matters, or, secondly, that other courts, of which three are specifically listed by name in section 166(b), (c) and (d) of the Constitution, can under no circumstances have jurisdiction in those matters (and given the fact that the Constitution is supreme (section 2 of the Constitution), any Act of Parliament (other than a constitutional amendment) endeavouring to do so, would be ultra vires) but could in certain circumstances have jurisdiction in respect of some or all of the remainder of constitutional matters.

4.4 E A Kellaway Principles of legal interpretation of statutes, contracts and wills 1995 states at 68 that “... where the purpose of the legislature is manifest, great care should be taken not to disregard it in favour of the literal meaning of words used in the provision, especially when the meaning of such provision is at issue.” LM Du Plessis The Interpretation of Statutes 1986 at 127 and 128 quotes, with approval, the court’s judgment in S v Looij 1975 (4) SA 703 RA 705 where it held that “(t)o determine the purpose of the Legislature, it is necessary to have regard to the Act as a whole and not to focus attention on the single provision to the exclusion of all others. To treat a single provision as decisive ... might obviously result in a wholly wrong conclusion.”. Kellaway op. cit. states at 330 and 331 that “(i)f something is ‘necessarily implied’ in an Act ... it is deemed to be expressed by the language used by the Act; that is, what is implied is deemed to be expressed although the language used does not explicitly say it ..... In the case of enactments, what is implied arises ... from the presumed intention of the legislature and the implication is drawn with the object of giving efficacy to the provisions of an enactment in question”. Van Winsen J in the judgment of S v Van Rensburg 1967 (2) SA 291 (C) at 294 refers to this issue stating that “(i)f ... an intention is to be ascribed to the legislature it can only be on the ground that if the [legislation] is looked at as a whole the implication arises that such must have been the intention of the legislature. This implication must be a necessary one in the sense that without it effect cannot be given to the statute as it stands.”,(emphasis supplied).

4.5 The constitutional jurisdiction of the Supreme Court of Appeal is described in section 168(3) of the Constitution (it has none), and that of the High Courts in section 169(a). The constitutional jurisdiction of Magistrates’ Courts is described in section 170 of the Constitution. Given the clear and unambiguous language conferring a measure of jurisdiction in respect of constitutional matters upon these various courts, we cannot support the first conclusion listed above in paragraph 4.3, which would imply that all constitutional matters not listed in that subsection automatically or necessarily fall within the jurisdiction of all other courts. We are also not persuaded that section 167(6)(b) adds support to the supposition that section 167(4) may as a necessary implication confer jurisdiction in constitutional matters on Magistrates’ Courts, as it makes provision for appeals which may, or may not, be forthcoming, depending on the legislature’s conferring constitutional jurisdiction in terms of section 170 on Magistrates’ Courts and other courts. The reference in section 167(6)(b) to “any other court” therefore merely serves to keep all options open should the legislature wish to confer jurisdiction in respect of constitutional matters on courts which at the time of the adoption of the Constitution by the legislature did not have that jurisdiction or whose jurisdiction is not determined in detail by the Constitution. Section 170 of course does not exclude the possibility of an Act of Parliament (whether existing or impending) conferring such jurisdiction, subject ot the limitation stated therein. It would also be impossible, in our opinion, to argue that the Magistrates’ Courts have an inherent jurisdiction to inquire into constitutional matters, in view of the fact that it is first and foremost a creature of statute (see the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), as well as the explicit provisions of section 173 of the Constitution in respect of only the Constitutional Court, the Supreme Court of Appeal and the High Courts.

4.6 Section 8 also to our mind does not in itself confer a general jurisdiction in respect of constitutional matters on the Magistrates’ Courts. Section 8(1) serves to make the values contained in the Bill of Rights applicable to all judicial actions and decisions, and the reference in section 8(3) to “a court” serves to empower courts who have jurisdiction in respect of constitutional matters, whether that jurisdiction is conferred by the Constitution or by an “ordinary” Act of Parliament, to deal with the issue of the horizontal application of the Bill of Rights.

4.7 I M Rautenbach and EFJ Malherbe in Staatsreg (Tweede uitgawe) 1996 (the only authority currently available to us on this particular subject of the Constitution) state at 231 that “(a)lle ander howe (i.e other than the Constitutional Court, the Supreme Court of Appeal or High Courts) het slegs jurisdiksie oor grondwetlike aangeleenthede indien dit deur 'n parlementswet aan hulle verleen word.” (insertion supplied).

4.8 This then raises the question whether an Act of Parliament exists which confers jurisdiction in respect of constitutional matters on Magistrates’ Courts.

4.8.1 In respect of civil litigation, section 29 of the Magistrates’ Courts Act provides for jurisdiction in respect of causes of action. That section is, however, subject to the provisions of section 46 of that Act, which determines certain instances where that court does not have jurisdiction. Of special interest is section 29(1)(g) of that Act, which states that a magistrates’ court has jurisdiction in “actions other than those already mentioned in this section, where the claim or the value of the matter in dispute does not exceed the amount determined by the Minster (of Justice) from time to time by notice in the Gazette,” (own insertion). This indicates that in general (but subject to other provisions of that Act pertaining to jurisdiction, e.g. section 28 and 46, as well as the Constitution and other statutory measures, and subject to the amount determined by the said Minister) no numerus clausus exists in respect of cause of action.

4.8.2 In respect of criminal matters, section 89 of the Magistrates’ Courts Act, 1944, provides that district courts and courts of a regional division (both being Magistrates’ Courts - see section 2(f) and (g) of that Act) together have jurisdiction over all offences except treason.

4.9 Given our conclusion in paragraphs 4.5, which indicated that no explicit jurisdiction in respect of constitutional matters has been given to the Magistrates’ Courts, consideration must be given to rules of law (such as presumptions) or rules of construction (such as maxims) to establish whether jurisdiction has been given implicitly. It should be borne in mind that the tenets of interpretation of “ordinary” legislation apply, and not those of constitutional interpretation (inasmuch they may differ).

4.10 It is however clear that the Magistrates’ Court can under no circumstances have (implied) jurisdiction in terms of the Magistrates’ Court Act, 1944, in respect of constitutional matters:

1. which are the exclusive domain of the Constitutional Court (section 167(4) of the Constitution);

2. pertaining to any enquiry into or ruling on the constitutionality of any legislation or any conduct of the President (section 170 and 172(2)(a) of the Constitution);

3. which may be assigned expressly by “ordinary” legislation to a court of a status similar to a High Court (section 169(a)(ii) of the Constitution);

4. in criminal trials, any constitutional matter connected with a charge of treason (section 89 of Magistrates’ Courts Act, 1944);

5. in civil trials, connected with litigation excluded by the provisions of section 46 of the Magistrates’ Court Act, 1944, and beyond the jurisdiction conferred by section 29 of that Act; or

6. connected with litigation before “special” courts, e.g. the water courts (see section 40 of the Water Act, 1956 (Act No. 54 of 1956).

4.11.1 Kellaway op. cit. (published after South Africa’s becoming a constitutional state) at 332 states the following:

“It must be clearly stated that when an express provision might very properly have been provided for in the context of a statute, for a court to insert it by away of an implication when it could not properly be implied from the provision would not be the construing of the statute, but the altering or enlarging thereof, which is not permitted, and, if permitted, would be ‘legislating’. On the other hand, where the language used necessarily and naturally implies something more, the latter is deemed to be contained in the language so expressed ...... a power which is a necessary intendment for an express statutory provision is implied as having been duly granted by the legislature. (By ‘necessary’ is here meant ... that without an implied ancillary power the express provision could not be carried out.) It is submitted that the test as to whether something is necessarily implied, is to question whether that something is properly or reasonably required, or necessary or incidental to, or ancillary to any of the provisions contained in the statute.”

(original emphasis)

4.11.2 Du Plessis op.cit. states at 157 par. 58.3 that “...where an enactment expressly permits achieving a certain result, it also permits everything necessary to achieve that result by implication ..” (emphasis supplied)

4.11.3 Steyn op.cit. states at 52 that “(w)aar 'n wet 'n bepaalde gevolg of handeling gebied of veroorloof, gebied of veroorloof hy ook ... wat redelikerwyse nodig is om die gevolg teweeg te bring of die handling effektief te verrig ...” (emphasis supplied).

4.11.4 G E Devenish in an article entitled “Extensive interpretation: some anomalies in the South African approach” in Tydskrif vir Hedendaagse Romeins-Hollandse Reg 1989 502 at 509 states that “(p)rovisions which are not enacted in express words may under certain circumstances be deemed to be implied by means of the process of curial interpretation. The implication sough to be drawn must ... be a reasonable and necessary one......... In effect the court has to weigh up linguistic, contextual and common-law considerations in order to determine whether judicial law-making is justified under the circumstances.”

4.11.5 F J Van Heerden and A.C Crosby Interpretation of Statutes 1996 state at 29 that “(t)he interpreter may in suitable cases extend the meaning of words to give effect to the real intention of the legislature (purpose of the act).”

4.12 A number of rights contained in Chapter 2 of the Constitution are directly applicable to many cases heard in Magistrates’ Courts. Section 35 of the Constitution, for example, dealing with the rights of arrested, detained and accused person, is in practise mostly applied in cases heard in Magistrates’ Courts. The first appearance of accused persons, even where the actual trial is heard in the High Court, takes place in Magistrates’ The implications of the horizontal operation of rights, as envisaged in section 8(3) of the Constitution, is of utmost importance in civil litigation authorised by section 29 of the Magistrates’ Court Act, 1944. As can be seen in the definition of “jurisdiction” quoted above in paragraph 3.2, namely that it consists of the “power vested in a court of law to adjudicate upon, determine and dispose of a matter” (emphasis supplied), a court enjoined to consider and finalise a matter before it without having the power to adjudicate a constitutional matter pertaining to that case, would not be able to do so in many cases before it, and would therefore, in the words of Steyn, not be able “om die handeling effektief te verrig”. Section 35(5) of the Constitution, which provides for the exclusion of evidence “obtained in a manner that violates any right in the Bill of Rights if the admission of that evidence would render the trial unfair ...” (emphasis supplied), would be rendered null and void if the Magistrates’ Court could not consider this issue due to a lack of jurisdiction. The myriad of factual situations which could constitute a “manner” of obtaining evidence, would also render a reliance on stare decisis with improbable results.

4.13 Section 45 of the Magistrates’ Courts act, 1944, provides that a magistrates’ court has in general, subject to the matters beyond the jurisdiction of that court listed in section 46 of that Act, jurisdiction “...to determine any action or proceeding otherwise beyond the jurisdiction if the parties ... consent thereto ... “, (emphasis supplied). This would, in our opinion, entitle litigants to consent to jurisdiction of the Magistrates’ Court in respect of constitutional matters where such jurisdiction was not expressly excluded (for instance by the Constitution). The argument that section 45 only contemplates an increase of the maximum amount actionable in terms of section 29 of the Magistrates’ Court Act, 1944, or a mechanism to establish jurisdiction in respect of the defendant, was in our opinion feasible only during the period of time when the constitution of the day was not the supreme law of the land. That argument does not in our opinion take cognisance of the development in constitutional law. The fact that sections 29 and 45 were adopted before the commencement of the Constitution, 1996, is in our opinion neither here nor there, as the legislature is deemed to be aufait with the current law (see Steyn op.cit. at 132). In addition, if litigants were able to consent to jurisdiction in a matter which otherwise would be beyond the jurisdiction of the court, and such consent extended to constitutional matters, on what basis or policy consideration could an implied jurisdiction in terms of section 29 be denied? Furthermore, when a Magistrates’ Court in terms of the stare decisis doctrine applies a decision by the Constitutional Court or a High Curt on a constitutional matter, it decides whether that constitutional issue is applicable or not to the case before it.

4.14 We are therefore of the opinion that Magistrates’ Courts in principle do have jurisdiction in constitutional matters as implied by sections 29 and 89 of the Magistrates’ Court Act, 1944, but only to the extent that the finalisation of that case is dependent on the adjudication of a constitutional matter relevant to the case. This conclusion is however based on a value judgment, and a court may, or not, support or reject that value judgment. The Magistrates’ Court does not have an all-encompassing jurisdiction, but will in most cases be restricted to making a factual finding in respect of the applicability of a constitutional ruling by a superior court. In addition, where the Constitutional Court or a High Court has not yet pronounced on a particular aspect of Chapter 2 of the Constitution, and the provision catering for that aspect is not clear due to insufficient particularity or ambiguity, a Magistrates’ court would in our opinion be able to interpret that provision of the Constitution. That interpretation would, of course, always be subject to appeal or revision by a High Court or, if provided for in terms of section 167(6)(b) of the Constitution, the Constitutional Court. We are therefore not able to assist the Department with a numerus clausus of instances where the Magistrates’ Courts would have jurisdiction in constitutional matters.

4.15 Given that a Magistrates’ Court cannot under any circumstances rule on the “constitutional validity of any legislation ...” (see section 170 of the Constitution), the question posed by the Department in paragraph 2(b) of its submission falls away, as the validity of legislation may not be raised as a defence by any litigant or accused, and a Magistrates’ Court Act will have to adjudicate the case on the assumption that that legislation is constitutional. The validity of that legislation will have to be challenged when that case is taken on appeal or review before a High Court.

4.16 We would agree with the Department’s opinion reflected in paragraph 4.6 of its submission that section 110 of the Magistrates’ Court Act (which was amended by section 66 of the Magistrates’ Court Amendment Act, 1993 (Act No. 120 of 1993), which has not yet come into operation) does seem to be in conflict with the Constitution in respect of statutory regulations, and that it should be amended to reflect the position as set out in the Constitution.

5. We would strongly suggest that the Department in consultation with the Paliamentary committees on justice consider the desirability of amending the Magistrates’ Court Act, 1944, to expressly reflect the intention of the legislature in respect of that court’s jurisdiction vis-×-vis constitutional matters.

STATE LAW ADVISERS

RP ROSSOUW SC / WP KRULL / 1997-02-28

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